Mr Anthony Haddad of Taylors Development Strategists

(given orally at the hearing and subsequently revised)

1 This application for review is made pursuant to section 79 of the Planning and Environment Act 1987 in respect of the failure of the responsible authority to determine to issue a permit for a 25 lot subdivision at 130 Wedge Road, Carrum Downs. The land is included in the Residential 1 Zone and Development Plan Overlay Schedule 1 under the Frankston Planning Scheme. The development plan that has been approved by the responsible authority under the Development Plan Overlay is the Carrum Downs Outline Development Plan.

2 The Carrum Downs Outline Development Plan shows an area of proposed public open space to be located generally to the south west of the subject land. The area of proposed public open space includes a sliver of land in the south west corner of the subject land.

3 The proposed plan of subdivision for the subject land does not include any public open space. The Tribunal was told that the public open space requirement for the subdivision will be met by a cash contribution in lieu.

4 The Tribunal was advised that land to the south of the subject site has already been developed for residential purposes but no public open space has been provided in the location shown on the Carrum Downs Outline Development Plan. Instead, a subdivision to the west of the subject land has been approved and some public open space is located abutting the south west boundary of the subject land, although the area is smaller than the area of proposed public open space shown on the Carrum Downs Outline Development Plan.

5 The issue to be considered at the directions hearing is whether advertising is required pursuant to section 52 of the Planning and Environment Act. The applicant submits that the proposed plan of subdivision is generally in accordance with the Carrum Downs Outline Development Plan and hence is exempt from the notice requirements, decision requirements and review rights of the Act pursuant to clause 43.04-2 of the Development Plan Overlay in the Frankston Planning Scheme.

6 The Council submits that because the proposed plan of subdivision does not include the public open space shown on the Carrum Downs Outline Development Plan, it cannot be said to be "generally in accordance with the development plan" and hence is not exempt from the notice requirements of section 52 of the Act. Even though it is not possible now to provide all the public open space in the location as shown on the Carrum Downs Outline Development Plan due to development which has occurred to the south, the Council submitted it may still be possible to provide an open space link across the subject land in the location of the proposed public open space affecting the subject land as shown on the development plan.

7 I determine that the proposed plan of subdivision in the permit application is generally in accordance with the Carrum Downs Outline Development Plan for the following reasons.

8 The Carrum Downs Outline Development Plan shows a rectangular area of proposed public open space generally to the south of the subject land. Action by the responsible authority in approving development south of the subject land in the location of the proposed public open space shown on the Carrum Downs Outline Development Plan without requiring this land to be set aside for public open space has now precluded a strict compliance with this aspect of the development plan. However, public open space will be provided in the general vicinity except that it will now be located slightly to the north west of the position shown on the development plan. Thus the development that has occurred surrounding the subject land can be said to be "generally in accordance with the development plan" in terms that public open space will be provided generally in the locality shown on the Carrum Downs Outline Development Plan.

9 With the shift in location of the large area of public open space I do not consider that, the applicant is now obliged under the development plan to include in its application the small area of proposed public open space originally within the open space area shown on the development plan. The nature of the open space shown on the Carrum Downs Outline Development Plan in this location is a sizeable rectangular area, not a pedestrian link. This does not mean it may not be open to the Council to require such a link as a condition of the planning permit, although it would need to be justified notwithstanding the development plan and the development permitted under it to date. However, that is not the issue presently under consideration. The issue to be decided is whether the permit application can be said to be "generally in accordance" with the Carrum Downs Outline Development Plan in order for it to be exempt from the notice requirements of section 52(1)(a)(b) & (d) of the Act. I find that in the circumstances the application can be said to be generally in accordance with the development plan. Therefore, I determine that no advertising is required as the application is exempt under clause 43.04-2 of the Frankston Planning Scheme.